Wisconsin governor's order to leave ACA lawsuit rejected

Scott Bauer

January 24, 2019 - 3:16 PM

MADISON, Wis. - Wisconsin's attorney general has rejected Democratic Gov. Tony Evers request to withdraw from a multi-state lawsuit targeting the Affordable Care Act, saying in a letter released Thursday that only the Republican-controlled Legislature now has the power to take such action.

The decision is a setback for Evers, who along with Democratic Attorney General Josh Kaul was elected in November and opposed the lawsuit that seeks to repeal the federal health care law. Evers on Tuesday directed Kaul to withdraw from the case , but he later tempered the request after Republican legislative leaders and a nonpartisan legislative attorney said Evers didn't have the authority to make the order.

The Wisconsin governor previously had such authority, but Republicans stripped that power during a lame-duck legislative session last month. The legislation making the change was quickly signed by then-Gov. Scott Walker, a Republican who supports the lawsuit but was defeated by Evers in his bid for a third term. Other successful legislation also weakened Kaul's powers.

The law change gave the Legislature's GOP-controlled Joint Finance Committee the power to withdraw the states from lawsuits. Kaul, in a three-paragraph letter to Evers, wrote that the Wisconsin Department of Justice "does not have statutory authority to withdraw the State from the ACA litigation absent approval from the Joint Committee on Finance."

Kaul later sent a letter to the committee's Republican co-chairs asking to withdraw from the lawsuit and requesting the committee vote promptly. The committee's co-chairs, Rep. John Nygren and Sen. Alberta Darling, released the letter to media outlets early Thursday evening.

Republican Assembly Speaker Robin Vos said GOP lawmakers supported the lawsuit when it was filed but had not yet discussed the new request to withdraw.

A federal judge in Texas last month declared the Affordable Care Act to be unconstitutional, but its provisions remain in effect while the case is under appeal.

Evers' flip flop Wednesday drew derision from Republican Assembly Speaker Robin Vos, who tweeted "#AmateurHour." Baldauff said Republicans were making a "distraction" by focusing on how the Justice Department would comply with the new state law related to withdrawing from the lawsuit.

"Republicans know that people don't support their plans to gut the Affordable Care Act and are desperate to change the conversation," she said. "But the real story isn't complicated: the governor is ready to move forward with protecting the health care of millions of Wisconsinites."

Evers has yet to embrace a bill making its way through the Legislature that guarantees access to health insurance for people with pre-existing medical conditions in Wisconsin. The Assembly passed it on a bipartisan vote Tuesday, but Evers was skeptical, saying he was disappointed the measure didn't go farther to protect other essential health services.

The Assembly passed a similar bill last session but it died in the Senate. It's unclear whether this year's version has enough support there to pass, or whether Evers would sign it.

A Marquette University Law School poll released Thursday showed that 48 per cent of respondents supported Wisconsin withdrawing from the lawsuit, while 42 per cent wanted to continue. The poll of 800 registered voters was conducted between Jan. 16 and Sunday and had an error rate of plus or minus 3.9 percentage points.